RAGBUBAU DAYAL J. -[Rajagopala Ayyangar J. concurring, Mudholkar J. dissenting]. This appeal, on a certificate granted by the Bombay High Court, arises out of a petition praying for the annulment of the petitioner appellants marriage with the respondent, under section 12 of the Hindu Marriage Act, 1955 (Act XXV of 1955), hereinafter called the Act, on the ground that the respondent was, at the time of marriage, pregnant by some person other than the petitioner.

2. The facts leading to the proceedings are that the appellant and the respondent were betrothed sometime in June -July 1945 and were married on March 10, 1947. The appellant went abroad about the end of April 1947. A daughter was born to the respondent on August 27, 1947. The appellant returned to India sometime in November 1947, but the parties did not live together thereafter.

3. The appellant instituted a suit No. 34 of 1947 -48, in the Court of the State of Baroda, at Baroda, for the declaration of nullity of -the marriage. The suit was, however, dismissed on September 30,1949, as the appellant failed to establish that he had his domicile in that State.

4. The Act came into force on May 18, 1955. The appellant took advantage of its provisions and on April 18, 1956, filed the petition for annulment of his marriage with the respondent.

The appellant alleged in his petition that on learning of the birth of the child on August 27, 1947, five months and seventeen days after the marriage, he felt surprised and suspected that the child had been conceived long prior to the marriage through someone else, that the respondent was, at the time of their marriage pregnant by someone other than himself, that this fact was concealed from him and that ever since he had learnt of the birth of the child be had not lived or co -habited with the respondent nor had any relations with her whatsoever.

5. The respondent, in her written statement, raised various defences. She admitted therein to have conceived the baby prior to the marriage, but alleged that she had conceived as a result of sex relations with the petitioner after their betrothal, on being assured by him that that was permissible in their community. She further stated that her relations -in -law, viz., her father -in -law, mother -in -law and sister -in -law knew about such relations between the parties and about her having conceived prior to the marriage. She further alleged that she flatly refused to carry out abortion and that, therefore, at the instance of the appellant, the marriage was performed in Bombay and not at her parents place. She denied that the child born to her was by any person other than the appellant.

6. Due to her allegation about pre -marital sexual relations with the appellant and to her having conceived from such relations, she was required to furnish particulars about the time when, and the place, or places, where, the parties had sexual relations which she alleged to have led to her pregnancy. According to the particulars furnished by her, such sexual relations took place about or after Christmas, 1946, and again after about the middle of January 1947.

7. On the pleadings of the parties, six issues were framed, but those relevant for our purpose were:

1. Whether the respondent was at the time of the marriage pregnant by someone other than the petitioner as alleged in para. 9 of the petition!

2. Whether at the time of the marriage the petitioner was ignorant of the aforesaid fact

3. Whether the petitioner is entitled to have the marriage declared null and void

8. The petitioner examined himself and his father. The respondent examined herself and one other witness. The documentary evidence adduced by the parties consisted mostly of letters written by the petitioner to the respondent and the respondent to the petitioner, since their betrothal, and letters written by other relations of the family to one another.

9. The trial Court did not accept the allegation of the respondent ab